Chief Justice Interviews: Watch the full video and synopses
The public interviews of the shortlisted nominees for the top post in the country’s judiciary, took place from 1 – 4 February 2022. Four exceptional candidates were interviewed. One candidate per day.
Tuesday 1 February 2022: Constitutional Court Justice Mbuyiseli Madlanga
Wednesday 2 February 2022: President of the Supreme Court of Appeals Mandisa Maya,
Thursday 3 February 2022: Gauteng Judge President Dunstan Mlambo.
Friday 4 February 2022: Acting Chief Justice Raymond Zondo,
Watch their interviews below. Read the full interview transcripts or a brief synopses of each day’s events:
About Justice Madlanga
Justice Mbuyiseli Madlanga is currently most senior judge on the Constitutional Court after DCJ Zondo. A highly regarded jurist, Madlanga is often seen as the intellectual leader of the apex court. His judicial career spans two parts. At only age 34, Madlanga was at the time of his appointment to the Mthatha High Court in 1996 the youngest judge to ever be appointed to the South African judiciary. Within a short space of time, he had acted as Eastern Cape judge president and a judge of both the Supreme Court of Appeal and the Constitutional Court. However, due to financial pressures of raising a large family with young children, he resigned from the judiciary in 2001.
After a successful career practising as a senior advocate, Madlanga started the second part of his judicial career as a justice of the Constitutional Court in 2013. He has written judgments on many important social issues including land, corruption, women’s rights, electoral law and, more peculiar, the 2015 judgment in DE v RH, which abolished claims for damages for adultery in South African law. Madlanga still has an academic interest and has held numerous visiting professorships at local universities and abroad. He is the founding editor of the SA Journal on Judicial Education.
Chief Justice Interview
Interview Synopses
Constitutional Court justice Mbuyiseli Madlanga’s interview — convivial, but at best, middling — appeared to choke on a single word that refused to escape his mouth: Yes.
Late into Tuesday afternoon on a meandering first day of interviews to determine South Africa’s fifth permanent chief justice Nosiviwe Mapisa-Nqakula, the speaker in the national legislature, asked Madlanga an apparently benign question: Was South Africa ready for a female chief justice?
A “yes” — simple, progressive, obvious — would have sufficed. Instead, the monosyllable remained deep within Madlanga, as evasive as former president Jacob Zuma when asked for a paternity test sample.
This was startling. Especially since during the previous few hours Madlanga had had opportunity to big up his credentials as a self-described feminist. There were favourable references to a 2020 paper he had written, A Feminist Perspective on Judgment Writing; he talked passionately about how society as a whole, and the judiciary in particular, needed to pay more attention to sexuality, non-binary gender rights and LGBTQI+ inclusivity, and he had made all the right noises in bemoaning the legal fraternity’s inability to crack that old chestnut: briefing patterns by the state and private companies which was unfavourably skewed against black female practitioners — thus stymying their development in various fields of law and up the ladder towards judicial appointment.
A “big picture” judge who is mindful of the profound inequalities that polarises South African society, Madlanga also has the jurisprudence to back up his claims to be a feminist.
Writing for a Constitutional Court majority in the ground-breaking Daniels v Scribante judgment (2017) Madlanga had emphasised the importance of security of tenure and access to land in fostering the right to dignity of a female labour tenant, Ms Daniels, who had sought to make modest alterations to the home she lived in. The judgment had confirmed that right under the Extension of Security of Tenure Act.
In the 2015 DE v RH judgment Madlanga, writing for a unanimous court, found that the law need not continue recognising the delictual claim for damages based on adultery, by a non-adulterous spouse against a third party. In his application form Madlanga had described how he had initially traced the “patriarchal roots of this common law remedy” before “embarking on developing the common law in line with the Constitution”.
There are others. Yet, despite this, one of the leading intellectual lights of the Constitutional Court was unable to readily make an obvious concession.
In response to Mapisa-Nqakula, Madlanga talked of knowing Supreme Court of Appeal (SCA) President Mandisa Maya — who is the only female candidate, competing with three men to lead the judiciary — since their student days. He described her as a “worthy lawyer”, a “worthy colleague” and a “significant leader in the judiciary” and then told the Judicial Service Commission (JSC) that he would “leave that decision” on whether to appoint a woman, with it.
Mapisa-Nqakula responded by telling Madlanga that her question had been a general one and not confined to Maya. Acting SCA President Xoli Petse, who is chairing the JSC in the absence of Maya and acting Chief Justice Raymond Zondo (also a candidate for the chief justice position) then asked Madlanga whether he wanted to “answer categorically”, to which he responded: “I do not think I can take it further”.
Economic Freedom Fighters leader and member of the of the national legislature, Julius Malema, then raised his concerns that the “firmness” of Madlanga’s previous stance on gender transformation had shifted once the matter had become personal.
Thus began an exchange that lasted several minutes during which Madlanga joked that he would be asking Malema, who is set to continue leading his party, a similar question when the EFF held its next elective conference. But Malema stuck to his guns about Madlanga “struggling to commit” to the position that the country was ready for a female chief justice.
At one point during the exchange, Madlanga’s cellphone alarm went off. He apologised to the commission, saying he had not mastered the phone since it continued doing this, despite being off.
Advocate Thandazani Madonsela SC, a long time friend of Madlanga, joked that perhaps the phone “was alarmed by the question”. Madlanga himself joked that “the bell, unlike in boxing, is not saving me, Commissioner Malema”.
There were giggles. Madlanga did eventually make the concession. But, by then, his candidacy appeared to have been floored.
Madlanga had experienced an uneven interview. One that meandered often as Petse allowed both the candidate, and the interviewers, the kind of oxygen otherwise confined to a Coronavirus Intensive Care Unit. Commissioners prefaced questions by gratuitously tracing America legal history or mentioning tips.
Petse himself had raised concerns about the functioning of the Constitutional Court and the criticism it had attracted for the “extraordinary long delays” in handing down judgments; the quality of the judgments, some of which were “replete with incoherence”, while others used strong, abrasive language.
Madlanga said these were down to the “working procedures at the court which had not been revised since 2009” but had been profoundly exacerbated by the consequences of the Constitutional amendment which made the Constitutional Court the apex court for general jurisdiction, and not just constitutional matters in 2013.
This had the effect of quadrupling the work load at the Constitutional Court according to Madlanga, who had prepared a large, colour-coded file with notes on various issues relating to the court, and his candidacy, which may be raised.
Madlanga said the volume of work had increased from about 100 annual applications between 2009 and 2013 to almost 400 last year. With all judges required to decide on the merits of an application to be heard a the court, the “deluge” of cases being heard and the need to circulate comments to post-hearing notes and draft judgments, the system had been buckling.
He said he and acting Constitutional Court Judge Dhaya Pillay had researched and effected a turn-around strategy on how applications would be handled (on a rotational basis) by early December last year, which had already begun to bear fruits.
Madlanga asserted during several stages in his interview that this revised working procedure would also ensure judges would have more time to spend on crafting judgments which would be more scholarly and include fewer mistakes.
Despite his huge dossier, Madlanga appeared ill-prepared to answer direct questions about the administrative aspect of heading the South African judiciary and his vision for this arm of the state. This caused consternation among commissioners especially, abut whether the three-and-a-half years Madlanga had left on the apex court Bench would be sufficient time for him to up-skill enough while simultaneously turning around the judiciary, the Constitutional Court and the JSC.
At one stage Northern Cape Judge President Pule Tlaletsi asked Madlanga whether he had done an informal skills audit of the Constitutional Court to get a sense of where it individual and collective strengths and weaknesses mate lie — especially since there remain vacancies which require filling. Madlanga admitted that he had not.
Madlanga was coming across as an extremely likeable who was more partial to the adjudicative and jurisprudential aspects of being chief justice, than the administrative side.
In contrast to former Chief Justice Mogoeng Mogoeng who, at times during his tenure, appeared to prefer desk-jockeying paper to crafting seminal judgments, Madlanga said his vision of a chief justice was someone who “leads from the front” in terms of jurisprudence, and that he would not be a “super secretary-general of super director-general”.
He emphasised the need to delegate more in the running of the judiciary. Madlanga deftly side-stepped questions about his vision for the JSC itself, however.
Many of Madlanga’s comments set him apart from Mogoeng, a judicial officer whose ego was brittle, and skin gossamer thin during his tenure.
When asked about academic criticism of the Constitutional Court judgments by attorney Doris Tshepe (one of four commissioners appointed to the JSC by the president), Madlanga introspected and settled on one of his own judgments to respond to the question.
Noting that his 2017 judgment in State Information Technology Agency SOC Limited v Gijima Holdings (Pty) Limited, had been “roundly criticised” in academic circles, he told the commission that “reading the criticism there is a lot of substance to them, but was worried that sometimes this sometimes went “overboard”, to the extent that an academic had accused the justices of the apex court of not “caring to think”.
Such honesty was in stark contrast to the unedifying spectacle of the 2019 sitting of the Judicial Service Commission where Mogoeng ranted for long periods about academic and media criticism of judgments and how he “never read” these.
An admission of anti-intellectualism and rigid belief in a personal superiority of thought that Madlanga, who said often during his interview that his work as chief justice would be inspired by consultation and consensus, demonstrated the direct opposite of.
Madlanga also demonstrated a knowledge of technology that, like a rational position on Covid vaccinations, often escaped the previous chief justice. After a long series of questions a visibly tiring Madlanga had, under his breath, whispered his need for a toilet break.
“Ndiphethwe ngumchamo ngoku,” he said in isiXhosa, before realising his need to pee had been caught by the microphone. Cue laughter. And Madlanga responding that “I hope this doesn’t become a meme”.
An interview that started at 10.08 in the morning finally 7.26pm on Tuesday night, leaving many observers with the sense that there were now three candidates left in the race for chief justice.
Learn more about Justice Mbuyiseli Madlanga here
Read the full transcript of the interview here
About Justice Maya
Supreme Court of Appeal (SCA) President Mandisa Maya is a woman of firsts: she was one of the first women judges on the Eastern Cape High Court, the first black woman on the SCA, the first woman Deputy President and, later, the first woman President of the SCA. It this blazing track-record that puts her at the front of the line to be Chief Justice. Justice Maya previously has acted on the Constitutional Court and, if appointed, would serve the full 12-year term as chief justice, an advantage she hold over other candidates like Deputy Chief Justice Zondo and Justice Mbuyiseli Madlanga.
Chief Justice Interview
Interview Synopsis
Memo to members of the Judicial Service Commission (JSC): How not to conduct an interview for chief justice of the Republic of South Africa:
The very well-prepared judicial leader begins the interview with a comprehensive presentation on their vision for the judiciary and the Constitutional Court.
This includes plans to bring the magistracy closer to the superior courts for “a single judiciary” and a uniformity of skills and higher adjudicative levels for South Africans when they encounter and move through the country’s justice system.
The judge notes that women are “still hopelessly underrepresented” in the judiciary and highlights the importance of the South African Judicial Education Institute, describing it as a “game-changer” in skilling aspirant judges (especially black and female legal practitioners). There is the suggestion that a government programme for aspirant female judges, which was shelved over a decade ago because the foreign funding dried up, be resuscitated.
The candidate makes the alarming revelation that the judiciary does not have a sexual harassment policy and they want to address this. A fine detail that confirms why diversity of life and professional experience is so important for the Bench and its leadership.
The Office of the Chief Justice’s (OCJ) administrative function ensures the independence of the judiciary, the judge says. Its functioning is good but can be deepened by ensuring that “all powers of a national [state] department must be transferred to it” including greater control of the budget. The candidate promises more consultation with leaders and members of the various divisions, especially in more thoughtful expenditure. As an example, the candidate wonders why money has been spent on obsolete leather-bound diaries and “lap-tops we don’t use”. They say more pressing line-items which are “core” to judges’ function include employing more assessors and acting judges, and acquiring more law journals and legal books for under-resourced courts. The candidate confirms that they have previous administrative experience and that their leadership style will be a “consultative” one.
Noting the high incidence of rape and femicide in South Africa, and the pitifully low prosecution of these cases, the candidate appeals to the justice minister to apply pressure on the police minister and the rest of the security cluster to replenish the country’s forensic resources and skills for better prosecution rates.
Mindful of criticism of the Constitutional Court’s tardiness in delivering judgments, the candidate makes suggestions on how to improve the working practices of the apex court. The judicial leader says post-hearing conferences enhance quicker judgment turnarounds because matters are discussed while fresh in everyone’s mind. The candidate appears sensitive to the need to address a brittleness at the apex court — sometimes made publicly obvious in the language and tone of majority and dissenting judgments —and suggests their excellent work in eradicating animus at the Supreme Court of Appeal, will stand them in good stead for Braamfontein, the seat of the Constitutional Court. Being an outsider is a “huge advantage” because it will ensure “fresh perspectives” into the court, the candidate assures the commission.
Observing how the 2013 extension of the Constitutional Court’s jurisdiction has significantly increased its workload, the candidate says they will change how appeals are considered (currently, all judges must participate in rejecting or accepting an appeal) to decrease workloads.
The candidate’s track record at the SCA is impressive. It illuminates a judge with the skills to deal with the egos and problems in the judiciary.
But the candidate isn’t merely a desk-bound paper-jockey micro-managing administrative matters to the detriment of presiding in court and leading the development of the country’s jurisprudence.
They are also a FullBright scholar with an LLM from Duke University in the United States. They have over 200 reported judgments and penned the first ever one in isiXhosa. When they first joined the Western Cape High Court in 1999, the candidate had two reported judgments included in one volume of the South African Law Report — “a record,” the judge says. While the judge admits not hearing many politically contentious high profile case they have adjudicated high profile cases involving socio-economic rights, civil rights and so on. This suggests the candidate does not seek self-aggrandising media publicity and does care about the nuts and bolts of creating a more equal society.
The judicial leader’s vision is expansive and thorough. It addresses a range of issues, including potential Constitutional amendments to eradicate split decisions by changing the apex court’s quorum requirements and collapsing the SCA and the Constitutional Court into an expanded appellate division. The increasing litigation would be heard by smaller panels that adopted working principles the candidate says have worked at the SCA.
It is apparent that the candidate is, through their intelligence, hard work, qualifications, curiosity, professional experience, empathy for a catastrophically divided country and drive, “fit and proper” for the job. There is no doubt they would make a fitting chief justice.
Cue you, dear commissioners.
Most obviously and urgent tip: please don’t make flippant remarks or ask the kind of questions that highlight your unreconstructed and retrogressive thinking around non-binary gender matters. In fact. Perhaps you didn’t even have to ask any questions. The country had a good grasp of Supreme Court of Appeal President Mandisa Maya’s credentials and that she would make an excellent chief justice.
Also, don’t treat female candidates as amoebas who are utterly useless and need constant assistance — including being promoted to the head of the judiciary, merely because they are female. As Maya said: “I’m not good because I am a woman, I’m just a good woman judge.”
President Maya’s achievements mark her out as an exceptional South African and a lodestar in our republic. Period.
As head of the SCA, Maya sits on the JSC. She had previously raised concerns about whether the commission could handle gender transformation within the judiciary long before her 2 February interview for the position of chief justice.
In April 2021, during the interviews for positions on the Western Cape High Court, JSC commissioners asked the hackneyed question they always do when confronted with a female candidate: What can be done to address gender transformation within the legal fraternity and the judiciary? The answer has been repeated ad nauseam in JSC interviews: female lawyers need a wider range of briefs, female judges need a wider variety of cases.
At one point, Maya said her experiences as an advocate twenty years previously had mirrored that of the candidate, Nobahle Mangcu-Lockwood. Musing that nothing had changed, Maya asked the candidate whether she was not “tired” of being asked this question. The candidate responded that she was “exhausted”.
Also during that sitting, Maya wondered aloud whether the JSC had the capacity to effect gender transformation within the judiciary. On the evidence of the quality of questions and engagement with her on 2 February, the unreconstructed attitudes expressed — often with well-intended, but ill-informed, concern — by both male and female commissioners, confirmed that its members, patently, cannot be trusted to do so effectively.
But, it would be interesting to see how the JSC sharpens it attitude to gender and race transformation if Maya, with her diamond-level understanding of these issues, is its next permanent chairperson.
Read the full transcript of the interview here
Learn more about Supreme Court of Appeal President Mandisa Maya here
About Justice Mlambo
Judge President Dunstan Mlambo heads up the busiest court system in the country: the Gauteng High Court in Johannesburg and Pretoria. In this position, he has presided on some of the biggest cases to come before the courts, something that has inspired wild conspiracy theories about the political leanings of the “North Gauteng High Court”. Mlambo was tremendously successful chairperson of Legal Aid SA for 20 years, before stepping down to become board chairperson of the Community Advice Office of SA in 2019.
Chief Justice Interview
Chief Justice Interview Synopsis
Gauteng Judge President Dunstan Mlambo’s interview for South Africa’s chief justice signaled one of the lowest points in the Judicial Service Commission’s (JSC) existence.
February 3, 2022, will be remembered as the day when the aspirations of a decent, hardworking South African committed to his country, and the Constitution was set upon by a pack of commissioners more concerned with discrediting the judiciary as a whole, and Mlambo and his division especially.
All for apparent short-term and cynical political expedience.
This has raised the urgent question of what is to be done with commissioners who wilfully disregard their Constitutional mandate to thoroughly test candidates. Rather, they appear, in essence, hell-bent on undermining the Constitution, the judges they are tasked with helping appoint, and, ultimately, the rule-of-law.
Commissioners Julius Malema (a parliamentarian and Economic Freedom Fighters’ self-styled “commander-in-chief), Advocate Dali Mpofu SC (representing the advocate’s profession, but an EFF leader, also) and Advocate Thandazani Madonsela SC (one of four appointments by President Cyril Ramaphosa to the JSC), especially, converged on Mlambo like leering sharks around a swimmer.
The attacks were sustained and insistent. Seemingly orchestrated.
Malema attempted to discredit Mlambo’s intellect by suggesting he didn’t write many judgments and that his studying towards an LLB, which he completed in 2019 (the judge president obtained a B.Proc in 1983), was “because you have a desire to improve your writing skills because you are challenged in writing and as a result, you bring white judges on the full Bench to help you write judgments.”
The EFF leader was alluding to the North Gauteng High Court’s convention for panel decisions to be recorded as that of “The Court” rather than the scribe. Malema’s suggestion was an echo of tourism minister Lindiwe Sisulu’s batty opinion that South Africa’s judges were “house-niggers” inhabiting the headspace of their colonial masters.
Mlambo was unable to grasp how Malema was linking the LLB to his judgment writing ability or the composition of the panels at the high court which has heard several high profile political cases that involved the EFF, and the so-called “radical economic transformation” faction of the ANC which coalesces around former president Jacob Zuma.
Malema further insinuated that a “judicial hit squad” including specific judges had been created to ensure judgments went in favour of certain politicians, including President Cyril Ramaphosa, and against others, including Zuma.
A theme that he had picked up from Mpofu who noted that the allocation of cases — part of Mlambo’s job — was “open to abuse” since, as he observed, it was “almost compulsory” to have “white judges and certain judges” on panels adjudicating matters of a political nature.
Mlambo said the allocation of cases was worked randomly on a template that ensured equal division of labour and it was pure “coincidence” if any judges sat on more political cases than others.
He also confirmed that each judge on a panel was allocated different sections of a judgment to write and that the inclusion of junior judges was to ensure a “skills transfer and exposure” to complex matters.
The North Gauteng High Court, and its judges, including Mlambo, have been subjected to a relentless social media campaign that has cast them as “captured” judges who are in the pocket of the “CR17” campaign of the ANC — Ramaphosa’s faction.
These are unsubstantiated allegations that have swirled around Mlambo and his colleagues for the past three years and have been characterised by a messaging overlap between the Zuma faction in the ANC and the EFF itself. The candidate mentioned this atmosphere in his interview describing the “toxic” context against which the judiciary currently operates.
Madonsela, meanwhile, questioned Mlambo about his struggle credentials (which he admitted was limited to working as a trade-union lawyer), suggesting that he had not risked as much as other black people for South Africa’s new dispensation, and asked him, astonishingly: “How can you preside over a Constitution that you never fought for?”
Mlambo calmly said that he “didn’t see it as an obstruction”.
The silk from KZN also questioned Mlambo on two of his judgments related separately to current Public Protector Busisiwe Mkhwebane and her predecessor, Thuli Madonsela. The commissioner questioned Mlambo about how he had come to different conclusions despite the cases appearing quite similar in nature.
In the case of Mkhwebane (who is considered to be a Zuma partisan), she had investigated and found that Ramaphosa had benefitted from funding for his internal ANC campaign to become president of the party in 2017. Mkhwebane ordered parliament to haul the president before the joint disciplinary committee. She also ordered the National Prosecuting Authority (NPA) to investigate the president and report back to her in 30 days.
In the case of Thuli Madonsela, Mlambo was part of a panel that found that the then public protector could recommend the president to consult with the chief justice and ask him to recommend a judge to chair the State Capture Commission.
Advocate Madonsela observed that the outcomes pointed to Mlambo and his colleagues having a bias towards the Ramaphosa administration and against that of his predecessor. Mlambo responded that the panel had merely applied the facts to the law in their findings. He noted that in Mkhwebane’s case, she had erred factually in recommending that Ramaphosa be brought before parliament’s joint disciplinary committee since he was, in fact, the head of the executive and not a member of parliament. She had also trespassed on the independence of the NPA because she had instructed the institution to report back to her on the progress of the investigation into Ramaphosa within 30 days.
On the State Capture Commission judgment, Mlambo noted the academic criticism it had received. This centred around it allowing a trespass of the separation of powers doctrine. While rueing that the matter had not been reviewed on appeal so that greater clarity would have been lent to the case, he nevertheless stood by the decision. Mlambo said because Zuma was implicated in the public protector’s findings, it was not optimum for him to choose the judge to chair the commission — affirming the recommendation of the public protector. Mlambo said that judgment had relied heavily on the Nkandla judgment handed down by the Constitutional Court.
But the most offensive and egregious assault on Mlambo was triggered by Mpofu who used unsubstantiated rumours that the judge president was soliciting sex in exchange for acting positions in his division.
Mpofu, who is the JSC spokesperson, admitted that there was a “whispering campaign” and no evidence whatsoever, but proceeded to ask Mlambo to respond.
Mlambo denied the allegations: “It’s a rumour… Its’ a poisonous rumour, there is actually no substance to it. When I heard about it, I was actually shocked that someone would come up and say that… It’s unfortunate that people are using people’s names in spreading rumours of this nature. There is completely no substance to that rumour.”
That these appear to be mere rumours appear to be borne out by the numbers that Mlambo pointed out: when he started his tenure ten years ago, there were 49 male and 15 female judges in the Gauteng Division, this year there are 41 males and 38 female judges. Over the course of a decade very many female lawyers would have acted, before being appointed to reach these kinds of targets. And yet, there was not a single formal complaint or case docket opened against Mlambo.
Acting Supreme Court of Appeal President Xoli Petse took a somnambulist approach to these questions which were returned to often by Malema and Mpofu. This was disturbing because the JSC had developed a protocol that a candidate has to be forewarned if he is to be tested on adverse commentary, and that such commentary must emanate from a valid source.
He only overruled these lines of questions late in the afternoon, at about 4pm — after five-and-a-half hours of shameful returns to these rumours by members of the commission. The toxic leak had been opened and its stink permeated the sorry spectacle.
That rumour-mongering dominated Mlambo’s interview was a disservice to a head of court who has demonstrated throughout his career a tireless ability to turn around and improve the institutions he has led. On Mlambo’s CV is his being chairperson of Legal Aid South Africa, president of the Labour Appeal Court which was dysfunctional when he took over, and well-oiled when he left to become Judge President of the Gauteng Division (the biggest and best run in the country).
At the beginning of his interview Mlambo listed his “seven pillars” that propped up his vision for the judiciary, the Constitutional Court, and the Judicial Service Commission.
These included “accessible and present leadership” by him, building the Office of the Chief Justice, implementing efficiency measures relating to judicial operations, resolving complaints against judges more quickly, resourcing the Land Claims Court and other smaller and specialist courts including magistrates court, and the high courts, quickening the output of a tardy apex court and developing functional communication and engagement policies to respond to disinformation around the judiciary — much like the campaigns the EFF and the RET factions have been running.
Very little of this was traversed by a JSC seemingly obsessed by rumour. Commissioners were in dereliction of their Constitutional and statutory directive to test the fitness of Mlambo. Consequently, the commission appears to have abrogated its responsibility.
A vital question clung to the fetid stench left after this aberration of an interview: is it time to reconstitute this JSC?
ABOUT JUSTICE ZONDO
Deputy Chief Justice Raymond Zondo is probably SA’s most recognised judge (after retired CJ Mogoeng). As chairperson of the State Capture Commission and, more recently, as Acting Chief Justice, his face has been beamed on television screens almost daily for the last four years. As the current “second in command” of the judiciary, it might seem the logical choice for him to be the next Chief Justice. However, recent practice has shown that it is not automatic for the DCJ to succeed the Chief Justice (notoriously, Deputy Chief Justice Dikgang Moseneke was overlooked twice). The more serious drawback however is that DCJ Zondo only has 3 years of his nearly 30-year career on the Bench remaining. It might be felt that the new Chief Justice needs to spend a longer time in the job.
CHIEF JUSTICE INTERVIEW
CHIEF JUSTICE INTERVIEW SYNOPSES
The week-long meltdown of the Judicial Service Commission (JSC) reached its surreal end-puddle of gloop at about 9 pm on 4 February; at the very close of acting Chief Justice Raymond Zondo’s 10-hour interview to be permanently appointed to head South Africa’s judiciary.
It was loud-mouthed. Spittle-flecked. Angry. Indecorous. Coloured by a swaggering machismo and, like much of what had preceded it during the previous three days, exhibited both tragedy and farce against the backdrop of a constitutional democracy being relentlessly undermined.
There was Justice Minister Ronald Lamola loudly calling Economic Freedom Fighters (EFF) leader and member of the national legislature Julius Malema a “liar”. This was in response to the latter’s accusations that Lamola had illegally intervened to ensure Gauteng Judge President Dunstan Mlambo was invited to act at the Constitutional Court this year in preparation for his interview for the chief justice vacancy.
Malema’s insinuation was that Lamola, and possibly President Cyril Ramaphosa too, was engineering Mlambo’s ascent to the highest judicial office in the country.
The self-styled “commander-in-chief” of the EFF screamed his denials, and demands for protection from the chairperson, acting Supreme Court of Appeal President Xola Petse. Others started piling in loudly. Petse had displayed a somnambulist approach to chairing proceedings all week and roused himself long enough to call order. But the handbags had already been drawn and smacked about.
Sleep apparently still clouding his eyes, Petse then proceeded to read out a letter of complaint from a legal academic which criticised the commission’s sitting for its sexist approach to another candidate, SCA President Mandisa Maya, and its slanderous and rumour-mongering approach to Mlambo. The scandalous manner of the interviews opened it up to a legal challenge and ought to be re-run, Associate Professor Helen Kruuse from the University currently known as Rhodes stated.
Petse’s rambling read-out of Kruuse’s letter was interrupted when commissioners pointed out that the media — some twenty or so bodies — was still present in the room and it was perhaps not judicious to be making this complaint public right then. Again, it was too late.
So it was, the JSC interviewed candidates for the highest and most distinguished position in South Africa’s judiciary with all the grace and gravitas of a clown juggling four plates of beef stew while trying to walk a tightrope soaked in excrement.
Zondo’s interview — plodding and ponderous at first, fiery and shambolic towards the end — was indicative of all the elements that had relegated the week to farce.
These included relentless lines of political questions that sought to undermine the candidate and the judiciary — rather than test their capacity for office.
In Zondo’s case, this centered on his work at the Commission of Enquiry into State Capture. This campaign, on social media and the streets, to discredit the Zondo Commission specifically, and the judiciary generally, see the ANC’s so-called “radical economic transformation” faction’s messaging and disinformation overlap with that of the EFF.
During the interview Malema, especially, continued to return to the question of why Zondo had not subpoenaed Arthur Fraser, the former director-general of the Department of State Security, and a known henchman of former president Jacob Zuma, to testify before him. Zondo tried to explain several times that despite Fraser’s public utterances, he had not done what he said he needed to do — retrieve documents from the State Security Agency — to ready his testimony within the commission’s timeframes.
Malema continued to push the line, often much louder than he had spoken all week, that Zondo had not done so because this would have disrupted the narrative around state capture which the judge was apparently concocting selectively. The exchanges would make for great highlights reels on social media.
Zondo was also asked to dismiss allegations that he was releasing his final report in stages and had reserved the final part, which may or may not contain adverse findings against President Cyril Ramaphosa, until after the interviews so as not to affect his chances of appointment.
Other parts of his interview also drew on the Zondo Commission, as members of the JSC asked the candidate whether he would not be distracted from his job as chief justice by all the legal challenges which would follow his report (no) and why he had employed so many white lawyers at his commission (this was a misapprehension, according to Zondo).
Perhaps one of the few political questions which did shed light on Zondo’s suitability for the chief justice position revolved around Malema asking him about the time he had visited Zuma on a personal mission, before the Nkandla induna became president.
Zondo said he had arranged the meeting in his personal capacity after being present at a political rally where Malema had told the gathered crowd that he would “kill for Zuma” and the political elder had, then, not cautioned or chastised the young (at the time) firebrand when he followed him to the podium.
Zondo, a native of KwaZulu-Natal, said he had called the meeting with Zuma as a concerned citizen because he remembered well the bloody political violence that had engulfed the province in the 80s and 90s and was afraid of such a recurrence. A human instinct, perhaps, but judges are required to be more than mere mortals, and such an error of judgment was not kind on Zondo’s candidacy.
Despite the barrage of political questions, Zondo was dignified, relaxed, confident, measured, cool under pressure, and more assured than he had ever been in previous appearances before the JSC. He remained in control of his own destiny — as much as he could.
There is something rock-like and reassuring about Zondo. As if regardless of how much toxic political sewage rushes over him he will remain there, steadfast and impervious to attempts to erode either him or what he may represent: the commission into state capture which has exposed the vertiginous levels of corruption in the South African state and society, the rule-of-law, the Constitution, the quiet sense that with people like him around, South Africans can feel a little bit safer.
But the immovable nature of stone also has its drawbacks. It is inert and can only be moved by outside stimulus and energy. It lacks the ability to change without a hammer, a chisel, a drill, or a sculptor.
These characteristics also emerged from Zondo’s interview, but, in the frenzy of political questions, were not properly explored.
After almost four years away from the Constitutional Court and the judiciary Zondo appeared a little out of touch with what was happening in these spaces.
He was not quizzed sufficiently about his vision to modernise courts to make them more accessible and functional. Nor was he properly questioned on what strategies he would put in place to deal with the toxic and political social media whirlwind that the judiciary is currently engulfed in — an essential aspect of the new chief justice’s job. Especially considering the ramping up of misinformation that surrounds the judiciary. Especially since reports of Zondo’s time as president of the Labour Appeal Court were not flattering with regard to his ability to grasp technology.
At the end of another marathon, mad-cap day at the JSC at least one thing about the interview was consistent with all the others that preceded it: South Africans knew more about the commissioners than the candidate when it was over.
